Janice Rogers Brown Revisited

by Kieran Healy on May 5, 2005

Judge Janice Rogers Brown is back in the news, with Mark Schmitt and various members of the Volokhs discussing her promotion prospects. Henry has already noted her fondness for self-help guru Sam Beckett. Below the fold I reproduce a post of mine from 2003 about Brown’s rant—there’s really no other word for it—to the Federalist Society, delivered at the University of Chicago Law School in 2000. Mark Schmitt links to a similar outing from around the same time. She should have taken it on the comedy club circuit.

While reading Eric Muller’s defence of David Bernstein, I came across another of his posts:

Is it just me, or does this speech by Janice R. Brown seem a little, well, unhinged?

(Allen Brill has a chronology if you want to know who Janice R. Brown is.) Several of Muller’s commenters assure him that it’s just him and the speech is “entertaining and thought-provoking.” Clayton Cramer comments that it’s “splendid and thoughtful.” Well, that clinches it for me.

Actually, “unhinged” is a strong word, and I don’t think Janice R. Brown is insane. Also, I’m not in an position to parse her views on the Lochner decision. But as to her more general social theory… Well, the speech is a heady and unstable mix of libertarian obiter dicta, Randian bromides, culture-war cliches and, um, Procol Harum lyrics. No, really.

The whole thing is held together by the unbreakable bonds of conservative martyrdom. Speaking a few months before conversatives might reasonably have been said to control of all three branches of government, Brown says,

There are so few true conservatives left in America that we probably should be included on the endangered species list … But they need not banish us to the gulag.

Lucky for you, the liberals spared you … this time. And why?

We are not much of a threat, lacking even a coherent language in which to state our premise.

Sadly, Brown’s speech does on to confirm this claim. We are living, she claims, in a period of “cultural disintegration” where “words are ceasing to have any meaning” and “The question is: how do you feel.” What is to blame for this? The unfettered rise of market capitalism, with all the superficiality and commodified meaninglessness it brings, maybe? No, silly, it’s the fault of “the sheer tenacity of the collectivist impulse — whether you call it socialism or communism or altruism,” in conjunction with human nature:

In fact, it now appears that human nature is so constituted that, as in the days of empire all roads led to Rome; in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate.

Although human nature makes us rush toward the dead hand of government and enslave ourselves to socialism, we learn a few paragraphs later that it also is the main reason capitalism must triumph:

The founders viewed private property as “the guardian of every other right.” But, “by 1890 we find Alfred Marshall, the teacher of John Maynard Keynes making the astounding claim that the need for private property reaches no deeper than the qualities of human nature.” A hundred years later came Milton Friedman’s laconic reply: ” ‘I would say that goes pretty deep.’” As John McGinnis persuasively argues: “There is simply a mismatch between collectivism on any large and enduring scale and our evolved nature.

I like the idea that the absolute worst one can say about that crypto-socialist Alfred Marshall was that he was the teacher of that noted revolutionary communist, John Maynard Keynes.

On we steam:

Ayn Rand similarly attributes the collectivist impulse to what she calls the “tribal view of man.”

Oh god. Ayn Rand. Fourteen year olds of the world unite! The car keys shall be yours by sheer force of will! Objectivism requires it!

Democracy and capitalism seem to have triumphed.

Indeed they have, and surely nowhere moreso than in the United States. This raises problems for the theses put forward above. What to do? Who to blame?

But, appearances can be deceiving. … Marxism has been “shamed and ridiculed everywhere except American universities” but only after totalitarian systems “reached the limits of their wickedness.”

When in doubt, blame the professors. This does not address the fact that capitalism and democracy seem to have triumphed and we are living with the consequences, but Brown is getting to that. It turns out that capitalism did not triumph after all:

Of course … you might think none of that can happen here. I have news for you. It already has. The revolution is over. What started in the 1920’s; became manifest in 1937; was consolidated in the 1960’s; is now either building to a crescendo or getting ready to end with a whimper.

Far from being the most advanced form of market capitalist democracy, the United States is in fact a haven of something else. Could it be … Socialism?

At this moment, it seems likely leviathan will continue to lumber along, picking up ballast and momentum, crushing everything in its path … The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.

It seems the actually-existing socialism of the U.S., in contrast to actually existing socialism everywhere else, has managed to produce not a world that’s drab at best and totalitarian at worst, but rather an end-times party of positively dionysian proportions. How did they manage it? If this is socialism the Russians are going to want it back.

And what, in particular, is to blame for this? The answer is, of course, The New Deal. You might have thought it was a set of government policies that, along with the Second World War, helped save captialism from itself. In fact, it was the hellspawn of Robespierre and Lenin:

Out of that [French] revolutionary holocaust — intellectually an improbable melding of Rousseau with Descartes — the powerful notion of abstract human rights was born. At the risk of being skewered by historians of ideas, I want to suggest that the belief in and the impulse toward human perfection, at least in the political life of a nation, is an idea whose arc can be traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937. The latter date marks the triumph of our own socialist revolution.

Even if you’re prepared to give up the New Deal, you might retain some hope that the Enlightenment—associated with the likes of Adam Smith, for instance—was A Good Thing. But you would be wrong:

To the extent the Enlightenment sought to substitute the paradigm of reason for faith, custom or tradition, it failed to provide rational explanation of the significance of human life. It thus led, in a sort of ultimate irony, to the repudiation of reason and to a full-fledged flight from truth — what Revel describes as “an almost pathological indifference to the truth.”

All this is bad enough. However:

But there are even deeper movements afoot. … We find ourselves … in a situation that is hopeless but not yet desperate. The arcs of history, culture, philosophy, and science all seem to be converging on this temporal instant. … Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.

Oh my. So there you have it. A clear outline of why free-market capitalism is inevitable in the light of human nature yet has been displaced in the United States because of the collectivist impulse ingrained in human nature and the crypto-revolution of The New Dealers which created the socialist leviathan of the American state that now crushes everything with its dead hand while allowing people to do what they like, engaging in mindless decadence with no respect tradition, custom or the standards of truth and rationality, thanks in large part to the Aid to Families with Dependent Children program and its gruesome offspring TANF, those bastard children of Enlightenment, the Terror, October 1917 and The New Deal (again), but do not fear because there is yet a chance that we can be propelled in millenarian frenzy into a world where free markets rule an economy comprised of Objectivist agents who nevertheless are imbued with the Feudal virtues of respect for the moral authority of their betters, committed to traditional pre-Enlightenment values and immune to the social and cultural transformations that tend to be associated with capitalism. Then we shall be happy.

The arcs of history, culture, philosophy, and science all seem to be converging on this temporal instant.

I find it “interesting” that Brown cites Hayek, but fails to note an entire chapter in Road to Serfdom where Hayek explains how the central planners he abhors use inevitability as an excuse for their actions. You can lead an ass to information, but you can’t make them think.

Look, it’s not like the real structure of the speech is so hard to understand. It’s not intellectual coherence she’s aiming at, but political-coalitional coherence. This is a “pass the red meat around to everyone” deal. Burkeans? Check. Randians? Check. Epsteinians? Check. Theocrats? Check. She’s covered all her bases.

FWIW, her actual jurisprudence seems to follow a much more straightforward, consistent libertarian line. But the Federalist Society’s a mixed bag, and you’ve gotta know your audience.

As the risk of becoming a me-too-man… I’m also having a problem with people who claim “ARGH!!!!!! W3 N30C0NZ R AN END4NG3R3D SP3CI3Z!!!!!!” one minute and “W00T!!!!!! C4P1T4L1ZM W1NZ!!!!!!” the next.

And don’t get me started on morons who scream that “elitist liberal” professors are oppressing their righteous rightist students, and then later on yell that “elitist liberal” students are making too much noise and should just obey their professors.

Just to be clear, the “unfettered rise of market capitalism” thing was intended to foreshadow Brown’s complaining about the debased, debauched modern culture with its preference for mindless entertainment and all that. But go ahead, make my day and show me how she’s putting forward a coherent view.

[Can’t….stop….fingers…..]
Reguardless of whether you believe the New Deal helped end the Depression (it didn’t), you must concede it sentenced a generation to starve and grow up malnorished (artificially increasing the price of AG goods while artificially lowering supply).

FDR was no Hoover, and Hoover was no Harding. FDR, liar and economic idiot, extraordinaire.

The arcs of history, culture, philosophy, and science all seem to be converging on this temporal instant. Familiar arrangements are coming apart; valuable things are torn from our hands, snatched away by the decompression of our fragile ark of culture.

“All fixed, fast-frozen relations with their ancient and venerable prejudices and opinions are swept away; all new-formed ones become antiquated before they can ossify. All that is solid melts into air, all that is holy is profaned, and men at last are forced to face with sober senses the real conditions of their lives and their relations with their fellow men.”

Thank you Jeremy, I was beginning to think the Procol Harum reference was some sly code for “Uncle Tom” type accusation but there it is in black and white…and all the colors of the rainbow…

You gotta give her props though for her skill in employing the old hi/low culture rhetorical trick:

Sound familiar? Of course Procol Harum had an excuse. These were the 60’s after all, and the lyrics were probably drug induced. What’s our excuse?

One response might be that we are living in a world where words have lost their meaning. This is certainly not a new phenomenon. It seems to be an inevitable artifact of cultural disintegration. Thucydides lamented the great changes in language and life that succeeded the Pelopennesian War…

What’s next? Sir Mix-A-Lot’s “I like big butts” to be followed by some snippet of Sappho?

Never mind the fact that in the classics one can easily find a bevy of horse cock jokes as any librarian can tell you.

Maybe it’s these lyrics that she quotes that have aroused her…uh…ire:

and likewise if behind is in front
then dirt in truth is clean….”

What is with the right’s obsession with ass-fucking?

—–

And since I’ve noticed the Timberites inexplicable failure to let the First Lady’s horse cock masturbation joke to go unposted upon, I offer this bit of horse cock cinematic history in hopes it might provide a key to Dubyan psychopathology:

Caligula

Equus

That short animated bit that Lenny Bruce did about why the Masked Man (i.e. The Lone Ranger) never stayed around to accept thanks or presents for his ever-timely interventions. If you haven’t seen this you really owe it to yourself. It’s absolutely hilarious. Yet more evidence of just how far ahead of his time Lenny was. (I found it many years ago appended to the end of a video of one of his last performances, I’d skip his routine and go straight to the cartoon.)

People on the left like to complain that the big spending, global adventuring, private-life meddling Republicans who run the show in Washington today are not *real* conservatives.

Janice Rogers Brown would appear to have something along the same lines in mind when she complains that “there are so few true conservatives left in America” – though her definition of a “true conservative” would no doubt differ from that preferred by the aforesaid people on the left.

Is this “unhinged?”

Ms. Brown agrees with John McGinnis that “there is simply a mismatch between collectivism on any large and enduring scale and our evolved nature.” She also believes that there is an element in human nature that loves big government. Mr. Healy appears to believe that there is some sort of contradiction here. But compare: in the long run, a life addicted to opiates cannot be a happy or flourishing life. Yet there is an element in human nature that craves opiates.

Is this “unhinged?”

Ms. Brown cites Ayn Rand’s identification of “the collectivist impulse” with the “tribal view of man” – i.e., the view that the individual is and/or should be subordinate to the group. Mr. Healy reacts to this not especially shocking idea exactly the way that “objectivists” typically react to any mention of Kant, even when he’s saying something perfectly sensible.

He gets unhinged.

“Oh god,” he groans, and whips out what has to be the feeblest parody of this easily parodied author I’ve yet come across (I mean, really: “the cars keys shall be yours by sheer force of will?” What’s that about?)

Ms. Brown sees Roosevelt’s “New Deal” as a turning point in the growth of the modern American system of welfare for all: poor, middle-class and rich, employers and unemployed, business, academia, the arts…everyone and everything. To her, this looks like creeping socialism.

Is this “unhinged?”

Consider: since 1929, U.S. government spending as a percentage of GDP has gone from less than 10% to more than 30%. In nominal dollar terms, that’s a change from less than $100 to more than $12,000 per capita. $12,000 is about the same as leading members of the European Union. (For example, the U.S. government actually spends quite a bit more per capita on healthcare than France does). Meanwhile, the CBO projects that U.S. government spending on retirement and healthcare alone will in the foreseeable future more than double as a percentage of GDP.

Like many conservatives, Brown believes that all this fosters a culture of dependency and irresponsibility “which finds moral depravity entertaining and virtue contemptible.” After all: if the government is always there to save you from the consequences of your irresponsible choices, why not behave irresponsibly? Why not tolerate, or even encourage, irresponsible behavior in your children? Why not embrace irresponsibility as a creed? Why not treat responsibility as a vice, rather than a virtue? Why not, like Crooked Timber’s John Holbo, stigmatize responsible behavior as a “conformist crouch?”

Is this worry “unhinged?”

So Mr. Healy appear to think. He looks at the same massive expansion of the welfare state and sees only “the unfettered rise of market capitalism, with all the superficiality and commodified meaninglessness it brings.”

He does not pause to compare the popular culture and mores of the early 20th century, when capitalism really was relatively unfettered, to those of today.

That, after all, might raise questions about just exactly who is “unhinged.”

But enough. I don’t know whether meaningful communication is even possible here.

“If music be the food of love
then laughter is its queen
and likewise if behind is in front
then dirt in truth is clean….”

Now I like Procol Harum. I like Gary Brooker’s voice, piano playing and ear for melody, I thought Barry Wilson was in the top 6 drummers, Keith Reid’s words usually scanned, and “Still There’ll Be More” was a very grounded song about terror in 1969.
But I’ve never heard that so-called “last verse” of “Whiter Shade” (though it does match the metre of the verses I do know).
Is this batshit judge a collector of obscure alternate versions, or did the battalion of adjuncts who actually wrote her speech slip that verse in as a sort of challenge? Were any of the other references slipped in as challenges – “can we get her to say that Harding was touched by God? That Eleanor Roosevelt suckled demons?” ? Only asking.

_He does not pause to compare the popular culture and mores of the early 20th century, when capitalism really was relatively unfettered, to those of today._

Yeah, and that ties in perfectly with Brown’s claim that “Democracy and capitalism seem to have triumphed”… or something.

_After all: if the government is always there to save you from the consequences of your irresponsible choices, why not behave irresponsibly?_

Well, there are only two kinds of actions: (1) risky, (2) not risky. But wait! There are also only two kinds of actions: (1) responsible, (2) irresponsible. Clearly risky = irresponsible, not risky = responsible! Because Steve Burton the guru says so.

Furthermore, there are only two kinds of governments: (1) big (2) small. There are only two kinds of taxes: (1) high (2) low. There are only two ideologies: (1) Stalinism (2) libertarianism. There are only two religions: (1) Christianity (2) Islam. There are only two colours of hair: (1) white (2) black.

_… though her definition of a “true conservative” would no doubt differ from that preferred by the aforesaid people on the left._

And that definition is…? Or maybe “conservative” is a nebulous concept which is very hard to pin down. Thus, as far as Brown is concerned, the same person can be a conservative when it’s convenient, and not a conservative when it’s convenient. Nice idea.

By the way, I think the Free World needs a program to ferret out any rants containing the words “The Left” with no qualification whatsoever, and brain these rants with the word “MORON”.

“Reguardless of whether you believe the New Deal helped end the Depression (it didn’t), you must concede it sentenced a generation to starve and grow up malnorished (artificially increasing the price of AG goods while artificially lowering supply).”

Do you know this or are you just pulling it out of your butt? Who has proved it? Raising the price of agricultural goods can increase malnutrition or reduce it, depending on where the money from the increased prices goes. If it represents a transfer from the rich to the poor, it can easily reduce malnutrition. Farmers were a quarter of the population in 1930, with more small town population who directly benefited from increased farm income. Poverty and malnutrition was concentrated in the rural population.

Not to mention FDRs various relief schemes which also represented income transfers to the poor.

But no doubt all the people you know who were poor kids in the 1930s have bitter memories of FDR for taking food from their mouths. Funny he was so popular with their parents.

You are right that he didn’t end the Depression, but that’s because he wasn’t socialist and Keynesian *enough* — refused to run a large enough government deficit. Took WWII, with its massive infusions of government capital and virtual state control of the economy, to end the depression for good.

Following mq’s skepticism in comment #30, Jet’s comment on about a generation sentenced to starvation and malnourishment is, to put it mildly, not borne out by evidence.

Costa and Steckel (1997, in Health and Welfare During Industrialization) present data on mean adult height and average life expectancy of US-born caucasian Americans between 1710 and 1970. Beginning around 1900, both statistics begin a strong secular trend with a slight inflection downward in the late ‘teens and early twenties, but otherwise without any dips which can be attributed to 1930’s or 1940’s era policies.

Secular trends in mortality rates also decline steadily from 1900 through the present, with an asymptotic slowdown in the last thirty years (Robert Fogel, 2004)

Certainly at local and regional levels there were patterns of malnutrition and even starvation during the Great Depression. But overall, there is no evidence that either the Depression or the New Deal had any lasting effect on the longer-term trend of increasing life expectancy, height, body-mass indicies, or average caloric intake which began in the early years of the 20th century as a result of industrialization and scientific advances in our knowledge of the connection between health and nutrition.